MATTER OF AHMAD v. Naviwala

• Decision Date: 05 June 2003
• Citation: 762 N.Y.S.2d 125,306 A.D.2d 588
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of SAMIA N. AHMAD, Appellant,<BR>v.<BR>IQBAL M. NAVIWALA, Respondent.

306 A.D.2d 588

762 N.Y.S.2d 125

In the Matter of SAMIA N. AHMAD, Appellant,

v.IQBAL M. NAVIWALA, Respondent.

Peters, J.

Decided June 5, 2003.

Cardona, P.J., Crew III, Rose and Kane, JJ., concur.

Peters, J.

The parties, devout Muslims, were married in 1986 and have four children, Maareah (born in October 1988), Asmaa (born in September 1989), Safiyya (born in February 1992) and Osamah (born in August 1994). In August 1997, petitioner and the children went to Saudi Arabia to reside with respondent after he became employed by Saudi Aramco. Seven months later, petitioner and the children returned to the City of Binghamton, Broome County, due to marital strife. By November 1998, petitioner sought a divorce and, in June 1999, she received an order of sole custody with a reservation of rights to respondent due to his default.

After consulting with religious scholars of Islamic law, the parties, represented by counsel, agreed that petitioner would maintain sole custody of Osamah until June 13, 2001 and of Maareah, Safiyya and Asmaa until January 1, 2002 at which point sole custody would be transferred to respondent; the noncustodial parent would be entitled to a continuous three-month visitation period. This agreement was later incorporated, but not merged, into their October 29, 1999 judgment of divorce.

In June 2000, respondent took the children to Saudia Arabia for a three-month visitation. As it neared an end, respondent made numerous excuses for the delay in their return. Petitioner was ultimately refused all contact with the children and was informed on September 27, 2000 that they would not be returning. By that time, respondent asserted that he had received sole custody from a Saudi court; it is undisputed that petitioner never received notice of such proceedings.

There were continued efforts by petitioner during the next two years to regain custody of the children. She was severely limited by respondent's subversive measures, cultural barriers and an inaccessibility to the Saudi legal system. In April 2002, she learned that respondent was planning a trip to Texas with the children. Armed with an order from the Broome County Family Court, the children were seized and returned to New York. With a pending violation petition and competing modification petitions, Family Court scheduled a hearing.

At such hearings, respondent testified, among other things, that he failed to abide by the negotiated agreement because petitioner failed to properly school the children. He contended that his new wife is equal to that of petitioner and that the children were thriving in the Muslim environment. He believed that petitioner should be allowed four weeks of visitation every two years.

Petitioner proffered her own testimony as well as that of Glen Skoler, a forensic psychologist, William Hilton, an attorney specializing in child custody jurisdictional disputes and Kristine Uhlman, an expert in international child abduction disputes arising in Middle Eastern countries. Petitioner testified that she had been willing to abide by the negotiated terms of their agreement so long as the visitation provisions were complied with. Once respondent abducted the children, petitioner was denied both physical and telephonic access; she described her sporadic telephone conversations with the children as coached.

Petitioner has never been employed. She lives in her parents' five-bedroom home with each of the children having their own bedroom. She is supported by her family and her current husband who earns approximately $1,000 per month; respondent earns approximately $100,000 annually. While petitioner does not question respondent's commitment to the children, she opposed an award of custody to him if the children would reside in Saudi Arabia.^[1]

Family Court granted custody to respondent. Recognizing that Saudi Arabia was not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (see 51 Fed Reg 10494 [1986]; List of Hague Convention Signatory Countries, ) and that there was no method by which petitioner could enforce her visitation rights while the children resided in that country, the court imposed various conditions upon respondent. For his violation of the prior custody order, respondent was sentenced to a 30-day suspended term of incarceration conditioned upon his future compliance. Petitioner appeals^[2] and, by order dated October 30, 2002, this Court granted her motion for a stay.

On March 17, 2003, respondent moved to dismiss that part of petitioner's appeal which contended that Family Court failed to hold a hearing to determine respondent's liability under Judiciary Law § 773. By decision and order entered April 7, 2003, this Court withheld determination until this appeal.

The overarching issue is whether there has been a sufficient change of circumstances to warrant a modification of custody to promote the best interests of the children (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Daniels v Guntert, 256 AD2d 940, 941 [1998]). Where, as here, the parties have entered into a custodial agreement, we are guided that "`[p]riority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded' to that agreement" (Eschbach v Eschbach, supra at 171, quoting Matter of Nehra v Uhlar, 43 NY2d 242, 251 [1977]). However, numerous factors must be considered in making such determination (see Matter of McGivney, 298 AD2d 642, 643 [2002], lv denied 99 NY2d 508 [2003]; see also Eschbach v Eschbach, supra at 172; Matter of Daniels v Guntert, supra at 941). While great deference is typically accorded to the findings made by Family Court (cf. Matter of Betancourt v Boughton, 204 AD2d 804, 806 [1994]), they must be set aside here because they lack a sound and substantial basis in the record (cf. Matter of Lattuca v Natale-Lattuca, 293 AD2d 805, 806 [2002]).

Established law dictates that where there is a willful interference with a noncustodial parent's right to visitation, it is deemed to be "`so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as [a] custodial parent'" (Matter of Glenn v Glenn, 262 AD2d 885, 887 [1999], lv dismissed and lv denied 94 NY2d 782 [1999], quoting Entwistle v Entwistle, 61 AD2d 380, 384-385 [1978], appeal dismissed 44 NY2d 851 [1978]). To be sure, evidence of a parent's occasional interference with visitation cannot alone decide a custody dispute; reversal of a custody order should not be a weapon wielded as a means of punishing a recalcitrant parent (see Matter of Hess v Hess, 243 AD2d 763, 765 [1997]; Matter of Irwin v Neyland, 213 AD2d 773, 774 [1995]). Here, however, there was no occasional interference.

Respondent intended to permanently remove petitioner from the children's lives. In our view, Family Court failed to fully appreciate the magnitude of respondent's actions. Despite the fact that the parties and the children are American citizens, respondent, after initially submitting to the...